SCHUETTE v. STATE OF MICHIGAN

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SCHUETTE

v.

STATE OF MICHIGAN

June 11, 1999

No. 205903

LC No. 94-007123 AV

Menominee Circuit Court

In re Nathan Gerald Reiswitz,

KATHY SCHUETTE,

Appellant,

v.

STATE OF MICHIGAN,

Appellee

Before: Whitbeck, P.J., and Markman and
OConnell, JJ.

PER CURIAM.

Appellant Kathy Schuette ("Schuette")
appeals by leave granted an order of the Menominee Circuit Court
affirming a Menominee County Probate Court order that denied
Schuettes request for a reduction in a reimbursement order.
The probate court ordered Schuette to reimburse appellee State of
Michigan (the "state") for the cost of care and
supervision during the placement of her son Nathan Gerald
Reiswitz ("Reiswitz") with the former Department of
Social Services (the "DSS"). We affirm.

I. Basic Facts And Procedural
History

Reiswitz was born on January 29, 1978. In 1993,
Reiswitz admitted his responsibility for the charge of larceny in
a building, MCL 750.360; MSA 28.592. The larceny involved
Reiswitz theft of a bottle of arsenic from his high school
and was coupled with indications that Reiswitz planned to put the
arsenic in Schuettes coffee. At a dispositional hearing in
November, 1993, the probate court ordered that Reiswitz be placed
in the care and supervision of the DSS. Schuette indicated that
she understood she would have to pay for her sons care
during this placement. The probate court ordered that
reimbursement was preserved, directed Schuette to fill out a
financial statement, and stated that when the statement was
returned the probate court would schedule a rate for
reimbursement. The probate court entered an order for
reimbursement in late November, 1993, providing that Schuette pay
reimbursement at the rate of $270 a week.

Schuette moved for reconsideration of this
reimbursement order, contending that it had incorrectly taken
into account her husbands income and that, since her
husband had no legal support obligation for her son, his income
should not have been considered in determining the rate of
reimbursement. At the hearing, the probate court agreed that the
husbands income should not have been considered and
recalculated the reimbursement rate at $27 a week, a calculation
with which Schuette agreed. The probate court therefore entered
an amended order of reimbursement providing for payment at the
rate of $27 a week.

Schuette then appealed from the amended order
of reimbursement to the Menominee Circuit Court. Schuette did not
dispute the rate of payment, but instead asserted that the
probate court was without jurisdiction to order reimbursement for
previously-incurred costs once Reiswitz returned to his own home,
an event that Schuette asserted would not occur until the end of
the school year. Schuette further argued that it was unreasonable
to order her to reimburse the state for the total cost of
Reiswitzs care where the payments would extend years into
the future.

The circuit court appeal was stayed pending
resolution by this Court of an appeal in a separate case (also
arising out of the Menominee Circuit Court) that presented the
same issue. Following this Courts decision in that case, In
re Brzezinski, 214 Mich App 652; 542 NW2d 871 (1995), the
parties stipulated to continue the stay pending resolution of an
appeal of the decision to the Michigan Supreme Court. After the
Michigan Supreme Court summarily reversed this Courts
decision for the reasons stated in Judge Griffins dissent, In
re Brzezinski, 454 Mich 890; 562 NW2d 785 (1997), Schuette
apparently abandoned her first issue (which had been based on the
argument that was ultimately rejected in Brzezinski), and
filed a new brief raising the claim that the probate court loses
jurisdiction over a childs parents (and hence the authority
to continue a reimbursement order) once it loses jurisdiction
over the child. Schuette claimed that the probate court had lost
jurisdiction over Reiswitz when he reached the age of nineteen on
January 29, 1997. Additionally, Schuette re-asserted her original
second argument: that reimbursement was unreasonable if it
required her to continue to repay the cost of out-of-home care
well into Reiswitzs adult life.

In late July, 1997, the circuit court heard
oral argument from the parties and ruled that the probate court
did have jurisdiction to enforce its reimbursement orders until
the reimbursement was paid in full, even after the juvenile was
no longer subject to the jurisdiction of the probate court. The
circuit court did not address the second issue raised by
Schuette. The circuit court entered a written order denying
Schuettes request for reduced reimbursement in mid-August,
1997.

In this matter, the probate court entered the
amended reimbursement order while the probate court had
jurisdiction over the parties. However, the probate court has not
attempted to exercise jurisdiction over either Reiswitz or
Schuette since Reiswitz turned nineteen. Thus, the first issue in
this matter is whether Schuette can avoid the requirements of a
proper reimbursement order, entered by the probate court at a
time when it had jurisdiction, because before Schuette had fully
complied with that order, the probate courts statutory
jurisdiction over the parties had ceased. We hold that Schuette
cannot avoid the effect of a properly entered reimbursement
order.

B. Standards Of Statutory
Interpretation

In Yaldo, supra, 457 Mich 346, our
Supreme Court summarized the basic standards to be utilized when
interpreting a statute:

The primary goal of judicial
interpretation of statutes is to give effect to the
intent of the Legislature. In determining legislative
intent, we look first at the words of the statute. If the
language is clear and unambiguous, judicial construction
[is] not normally permitted. If reasonable minds can
differ regarding its meaning, then judicial construction
is appropriate. The Legislature is presumed to have
intended the meaning it plainly expressed. [Citations
omitted.]

C. The Probate Courts
Original Jurisdiction Over Reiswitz

And Ancillary Jurisdiction Over
Schuette

The probate court is a court of limited
jurisdiction. In re Macomber, 436 Mich 386, 389; 461 NW2d
671 (1990). It derives its power from statutory authority. In
re Hillier Estate, 189 Mich App 716, 719; 473 NW2d 811
(1991). In this case, the probate court obtained jurisdiction
over Reiswitz under MCL 712A.1(a)(1); MSA 27.3178(598.1)(a)(1)
and MCL 712A.2(a)(1); MSA 27.3178 (598.2)(a)(1) as then in
effect. [1]Pursuant to MCL
712A.2a(1); MSA 27.3178(598.2a)(1), this jurisdiction terminated
on Reiswitz nineteenth birthday. Accordingly, the probate
court obtained ancillary jurisdiction over Schuette until that
time. MCL 712A.6; MSA 27.3178(598.6). Schuette contends that the
probate courts authority to compel Schuette to pay
reimbursement for the cost of out-of-home care ceased when its
jurisdiction over Reiswitz terminated. We regard this as an issue
of first impression in this states jurisprudence.

D. The Plain Language Of The
Statute

MCL 712A.18(2); MSA 27.3178(598.18)(2) granted
the probate court the authority to order reimbursement. At the
time of the proceedings below,[2] the
statute, in relevant part, provided:

An order of disposition placing a child
in or committing a child to care outside the childs
own home and under state or court supervision shall
contain a provision for the reimbursementby the
child, parent, guardian, or custodian to the courtfor
the cost of care or service. The order shall be
reasonable, taking into account both the income and
resources of the child, parent, guardian, or custodian.
The amount may be based upon the guidelines and model
schedule created under subsection (6). The reimbursement
provision shall apply during the entire period the child
remains in care outside of the childs own home and
under state or court supervision, unless the child is in
the permanent custody of the court. . . . Collections
to cover delinquent accounts or to pay the balance due on
reimbursement orders may be made after a child is
released or discharged from care outside the childs
own home and under state or court supervision. . . .
In cases of delinquent accounts, the court may also enter
an order to intercept state tax refunds or the federal
income tax refund of a child, parent, guardian, or
custodian and initiate the necessary offset proceedings
in order to recover the cost of care or service. . . .
[Emphasis supplied.]

The plain language of this statute provides the
probate court with the ability to order reimbursement for the
expenses associated with providing care for a juvenile under
court auspices outside of the juveniles home. The statute
also insures that the probate court will obtain reimbursement for
the care or service of a juvenile. "[T]he purpose of this
statute is to obligate parties to help shoulder the costs the
state incurs during the period that a child is ordered into
out-of-home placement." Brzezinski, supra, 214 Mich
App 676-677 (Griffin, J., dissenting). The Legislature clearly
recognized that the collection of reimbursement ordered pursuant
to the statute may be hampered by the inability of the obligor to
pay the amount ordered and that accounts may therefore become
delinquent. The Legislature, accordingly, provided for the
collection of delinquent accounts, even going so far as to
provide for the probate courts authority to intercept state
and federal tax refunds and apply them to the payment of
delinquencies. MCL 712A.18(2); MSA 27.3178(598.18)(2).

In In re Brzezinski, supra, 214 Mich App
652, this Court reviewed the language and history of
Sect. 18(2) and concluded that the statute did not mandate
that parents (or presumably any of the named parties) reimburse
the entire cost of a childs out-of-home care. Id.,
663-672. The majority also concluded that, since Sect. 18(2)
provided for the payment of "reasonable" reimbursement
based on "the income and resources of the child, parent,
guardian, or custodian," the probate court should use its
discretion to determine what constitutes a "reasonable"
amount. According to the majority. that amount might, in a
particular case, be the entire amount of the out-of-home
placement. Brzezinski, supra, 214 Mich App 671-672.

In a dissent that was subsequently adopted by
the Michigan Supreme Court [454 Mich 890], Judge Griffin agreed
with the majoritys conclusion that the statute did not
establish an absolute mandate that parents reimburse the entire
cost of a childs out-of-home care. Brzezinski, supra,
214 Mich App 675 (Griffin, J., dissenting). Judge Griffin further
concluded, however, that the statute permitted the probate court
to order that the reimbursement be made in installment payments
and that the final calculation of the total reimbursement amount
could be deferred until after a child was returned to in-home
custody. Id., 678-679.

Here, we take the logic of Brzezinski
one step further. The plain language of Sect. 18(2) is that
probate courts may order and collect reimbursement for the costs
incurred by the state when out-of-home placement is ordered. The
statute further provides for the collection of delinquent amounts
of such ordered reimbursement. Judge Griffin in Brzezinski
approved the use of installment payments. 214 Mich App 678. Such
payments clearly operate to the benefit of persons such as
Schuette by allowing them to avoid a large, lump sum amount of
reimbursement that might be difficult or impossible for them to
pay and instead breaking that large amount into a more manageable
series of payments.

Schuette, in effect, seeks to use the favorable
installment payment plan as a means of avoiding an obligation to
pay the amount of reimbursement determined by the probate court
to be reasonable. Judge Griffin explained why the similar
interpretation of Sect. 18(2) urged by the appellee in Brzezinski,
supra, 214 Mich App 678, would be contrary to the intent of
the Legislature, and with a slight modification, indicated in
italics below, we can apply his observations to this case:

First, the clear legislative intent of
having the state reimbursed for as much of its costs as
is reasonable would be partially frustrated if the
outstanding portion of the reimbursement obligation must
be forgiven once the parents regain custody of their
child [or, coextensively, once the child reaches the
age of majority]. Second, the ruling would create a
clear disincentive to a probate courts use of an
installment method in attempting to ease the burden an
already struggling parent will face in complying with the
reimbursement obligation.

Thus, we hold that a probate court may order
and collect reimbursement, both before and after the juvenile
reaches the age of majority, for the costs incurred by the state
when out-of-home placement is ordered.

E. Additional
Considerations

(1) Delay In Payment

We note that if a probate court lost the power
to enforce a reimbursement order once the juvenile reached the
age of nineteen, then it would always be in the parents
interest to avoid paying as much of the reimbursement as
possible, knowing that any arrearage would be wiped out once the
juvenile reached that age. This would either discourage probate
courts from ordering installment payments (with the concomitant
result that parents in some cases would be faced with large lump
sum payments that they would have difficulty paying), or would
result in installment payments that were scheduled so as to be
completed at the time jurisdiction over the juvenile terminated
(thereby also significantly increasing the amount of each payment
and reducing the benefits to parents of the installment payment
method of reimbursement).

Even these alternatives could not prevent
arrearages from occurring in particular cases. The time period
between when out-of-home care might cease and a juvenile reaches
the age of nineteen might be very brief, or even non-existent. In
such circumstances, the only alternative for the probate court
would be to order the immediate payment of a lump sum amount.
Further, nothing would prevent an obligor from paying only a
portion of the lump sum amount, or nothing at all. If
Schuettes interpretation of Sect. 18(2) is correct,
the probate court would lose any authority to compel the payment
of delinquent amounts when it lost jurisdiction over the
juvenile. This is clearly inconsistent with the language of the
statute insuring that delinquent reimbursement accounts could be
collected by the probate court. Schuettes interpretation of
Sect. 18(2) would therefore defeat the statutes
provisions for the reimbursement of costs expended in the
out-of-home care of juveniles.

(2) The Analogy To Child
Support Arrearages

We further note that interpreting
Sect. 18(2) to provide the probate court with authority to
command installment payments of reimbursement that would continue
beyond the date when a juvenile reaches the age of nineteen, and
also to provide for the authority to collect arrearages, is
consistent with the approach this Court has previously taken in
the similar setting of child support arrearages. In Wasson v
Wasson, 52 Mich App 91, 97; 216 NW2d 594 (1974), this Court
held that a circuit court had jurisdiction to use its contempt
power to enforce an order to pay arrearages of child support that
accrued before a child reached adulthood, even where the contempt
action was not commenced until after the child reached that age.
Child support payments are similar to the reimbursement payments
under Sect. 18(2) in that in both cases a payment schedule
has been set up to provide for a parents payment for the
care and support of the child. Further, in both cases the
courts jurisdiction over the child ends at some
predetermined age, and in both cases arrearages could easily
accrue. Noting that the courts in prior cases had seemed to
assume that a circuit court had the power to enforce its prior
orders through the contempt power, this Court held that such
authority existed and stated:

In the instant case, the support order
at issue was entered during the minority of the two
children. The amount at issue accrued before these
children reached the age of majority. The total arrearage
was in fact reduced by the trial court, and defendant
failed to argue that he does not owe the requested
amount. [Id., 96.]

In this case, the probate court determined the
amount of reimbursement due while Reiswitz was still within its
jurisdiction. Further, the probate court entered its amended
order requiring the payment of the reimbursement while it had
jurisdiction over Reiswitz and, accordingly, over Schuette. MCL
712A.2(a)(1); MSA 27.3178(598.2)(a)(1) and MCL 712A.6; MSA
27.3178(598.6). Schuette did not contest the accuracy of the
amount of reimbursement when it was calculated and ordered. [3]Wasson,
supra, 52 Mich App 91, and the parallels between the statutes
at issue in that case and this case further support our
interpretation of Sect. 18(2) to allow for collection of
installment payments and arrearages after a juvenile reaches the
age of nineteen.

(3) The Amendment Of The
Statute

We also note that the Legislature provided, in
a previous version of Sect. 18(7)(a)(i), for the probate
courts authority to impose an obligation of restitution on
the juvenile as a condition of probation. The Legislature further
specifically provided that the probate court could not require
the payment of restitution "unless the child is or will be
able to pay all or part of the restitution during the term of his
or her probation." MCL 712A.18(8)(a); MSA
27.3178(598.18)(a). However, the statute was amended with regard
to that provision and now states that "[a]n order of
restitution entered under this section remains effective until it
is satisfied in full. An order of restitution is a judgment and
lien against all property of the individual ordered to pay
restitution for the amount specified in the order of
restitution." MCL 712A.30(13); MSA 27.3178(598.30)(13).
While the restitution provisions are more specific concerning
both the viability of the debt and the power of the probate court
to compel payment, the fact that Sect. 18(2) specifically
indicates that "[t]he court shall provide for the collection
of all amounts ordered to be reimbursed," coupled with the
fact that Sect. 18(2) addresses the collection of delinquent
accounts, is a clear indication that the reimbursement section
establishes a legally enforceable continuing reimbursement
obligation.

(4) Authority By A Court To
Enforce Its Orders

We also note that interpreting Sect. 18(2)
to provide authority for the probate court to enforce orders for
reimbursement that are entered while the court has jurisdiction
over the juvenile and his or her parents is consistent with the
general proposition that a court has authority to enforce its
proper orders. "When a court issues an order and that order
is violated, the case returns to the court for enforcement."People v Norman, 183 Mich App 203, 206; 454 NW2d 393
(1989). MCL 600.611; MSA 27A.611 provides that circuit courts
"have jurisdiction and power to make any order proper to
fully effectuate the circuit courts jurisdiction and
judgments." Accord, Wiand v Wiand, 178 Mich App 137,
143-144; 443 NW2d 464 (1989). Similarly, MCL 600.847; MSA 27A.847
provides that probate courts "have the same powers as the
circuit court to hear and determine any matter and make any
proper orders to fully effectuate the probate courts
jurisdiction and decisions." The probate court had
jurisdiction over the parties when it exercised its authority
under Sect. 18(2) to order reimbursement and thus it has the
power to enforce that order. In addition, "a probate court,
being a court of record, does have the contempt power, MCL
600.1416 and 600.1701(3); MSA 27A.1416 and 27A.1701(3)." Teasel
v Dept of Mental Health, 419 Mich 390, 417; 355 NW2d 75
(1984). Therefore, the probate court had the authority, under the
statute, to issue its amended reimbursement order and
additionally had the authority, under its contempt power, to
enforce its proper order.

(5) Modification

Finally, we note that, as Judge Griffin pointed
out in Brzezinski, supra, 214 Mich 680, pursuant to MCR
2.612(C)(1)(f) a parent may seek a modification of a
reimbursement order. That court rule permits a court to
"relieve a party . . . from a final judgment [or]
order" for any "reason justifying relief from the
operation of the judgment."

F. Statutory Conflicts

Schuette argues that an interpretation of
Sect. 18(2) such as that discussed above would cause
Sect. 18(2) to conflict with MCL 712A2, 2a, and 6; MSA
27.3178(598.2), (598.2a), and (598.6) because it would provide
the probate court with continuing jurisdiction over the parties
after the juvenile reaches nineteen. According to Schuette, these
provisions clearly state that the probate courts
jurisdiction ceases when the juvenile reaches nineteen, whereas
Sect. 18(2), as we construe it, would extend the probate
courts jurisdiction to enforce its reimbursement order.
This argument ignores the fact that the probate court entered the
reimbursement order at a time when it had jurisdiction over
the parties. The probate court calculated the total amount of
reimbursement while it had jurisdiction. Thus, that total amount
became a fixed obligation. Section 18(2) provides that
"[c]ollections to cover delinquent accounts or to pay the
balance due on reimbursement orders may be made after a child is
released or discharged from care outside the childs own
home and under state or court supervision." MCL 712A.18(2);
MSA 27.3178(598.18)(2). Any further involvement by a probate
court therefore does not involve any exercise of jurisdiction
over the juvenile or his or her parent to impose new obligations
or to affect the disposition of the juvenile. Rather, the only
involvement that might occur in the future would be under
circumstances where the parent seeks relief from the judgment or
the probate court finds it necessary to invoke its contempt power
against the parent to secure compliance with the probate
courts lawful order. In such circumstances, the probate
court and the parent would stand as obligee and obligor to each
other. Therefore, the issue would not involve the disposition of
a juvenile, but rather the satisfaction of a legal obligation.[4]

IV. The Reasonableness Of The
Amended Reimbursement Order

A. Statement Of The Issue

The second issue in this matter is whether,
when the probate court properly exercises its discretion to
determine that reimbursement ordered pursuant to Sect. 18(2)
should be paid by installment payments that will continue even
after the juvenile is no longer under the jurisdiction of the
court, such a determination automatically renders the
reimbursement "unreasonable." We hold that such a
determination does not automatically render the reimbursement
unreasonable.

B. The Plain Language Of The
Statute

Section 18(2) provides that a probate court may
order "reasonable" reimbursement for the costs of
out-of-home care. This Court held in Brzezinski, supra,
214 Mich App 671, that the Legislature intended "that the
amount of parental reimbursement [ordered under Sect. 18(2)
should] be a reasonable amount, taking into account the
parents ability to pay." Here, Schuette has not
challenged the overall amount of the reimbursement; in fact,
Schuette stated that she agreed with the probate courts
calculation. Moreover, Schuette requested that Reiswitz be placed
outside the home and did not protest when the probate court
changed the placement from a foster home to the DSS, which
ultimately placed Reiswitz in a teaching family home.[5]Nor has Schuette
argued that she was unable to afford the reimbursement that was
ordered, particularly given that the installment payment schedule
called for payments of only $27 a week.[6]

Instead, Schuette has argued that requiring her
to pay reimbursement for years after Reiswitz became an adult was
in itself "unreasonable." Schuette suggests that it is
unreasonable to require that she pay the full amount of
reimbursement now that her son is an adult when he "is not
being required to pay for his transgression" even though he
"is potentially capable of paying." [7]The upshot of
Schuettes argument is that to avoid creating an obligation
that would stretch unreasonably into the future, a probate court
would be required either to demand a lump sum payment of whatever
reimbursement amount it had determined to be reasonable or to
order an installment plan with a shorter time frame and,
therefore, with significantly higher payments.[8]

In Brzezinski, supra, 214 Mich App 652,
both the majority and the dissent regarded the use of the term
"reasonable" in Sect. 18(2) as a requirement that
the probate court consider the ability of the child and the
parents (or the guardian or custodian, if applicable) to pay for
all or some portion of the costs of out-of-home care. This
interpretation accords with the plain language of the statute:
"The order shall be reasonable, taking into account both the
income and resources of the child, parent, guardian, or
custodian." MCL 712A.18(2); MSA 27.3178(598.18)(2).

Schuette does not argue that at the time the
order was enteredor even at the present timeReiswitz
had the ability and resources to pay the required reimbursement,
or even any portion of the cost of his out-of-home care. Nor does
she argue that she lacked the ability and resources to pay the
required reimbursement, particularly when the probate court
ordered payment on an installment basis of $27 a week. Thus, we
hold that the amended reimbursement order was not
"unreasonable" within the meaning of the plain language
of the statute.

Affirmed.

/s/ William C. Whitbeck
/s/ Stephen J. Markman
/s/ Peter D. OConnell

FOOTNOTES:

[1] Due to
statutory amendments effective January 1, 1998, jurisdiction
over such juvenile proceedings is now vested in the family
division of the circuit courts.

[2] The Legislature subsequently amended MCL 712A.18; MSA
27.3178(598.18) by 1996 PA 243, 1996 PA 244, and 1997 PA 163, but
the changes were minor (i.e., changing "child" to
"juvenile"), and these amendments did not affect the
substance of the statute.

[3]Schuette now
contends on appeal that it is "unreasonable" to require
that this total amount be paid back years after Reiswitz will
have attained adulthood.

[4] An interesting question in this regard arises from the Brzezinski
decision. According to the case, the juveniles birth date
was April 6, 1979. 214 Mich App 655. The Michigan Supreme Court
finally disposed of the appeal on April 8, 1997, and remanded the
case to the probate court "for redetermination of the amount
of respondents debt obligation." 454 Mich 890-891. The
order of the Supreme Court was thus entered two days after the
juveniles eighteenth birthday. The Brzezinski
decision indicates that the probate court had ordered the return
of the juvenile to appellees custody, but it does not
indicate when (or if) the probate court had relinquished
jurisdiction over the juvenile. It is therefore entirely possible
that the proceedings on remand occurred at a time after
the probate courts jurisdiction over the juvenile had
terminated. Nevertheless, it appears clear that the Supreme Court
would have ruled that the debt obligation that arose prior to the
termination of jurisdiction would still exist and could be
revisited.

[5] The foster home cost $13.85 a day while the teaching
family home cost $109.94 a day.

[6] Indeed, the probate court determined the amount of
reimbursement using the guidelines and model schedule provided
for in MCL 712A.18(6); MSA 27.3178(598.18)(6), and that section
specifically provided that the guidelines and model schedule
"shall take into account both the income and resources of
the child, parent, guardian, or custodian." Thus, the
guidelines and model schedule appear to incorporate the
reasonableness requirement of Sect. 18(2).

[7] However, Schuette has acknowledged that she can be held
responsible for payment of the entire amount that was due under
the reimbursement schedule up until the time of Reiswitzs
nineteenth birthday.

[8]Of course, a
variant of the second alternative would be to order a
significantly smaller amount of reimbursement, at the expense of
the state.